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"Constitution in Exile":

I really like Jeffrey Rosen of G.W. Law School and the New Republic, as a writer, a scholar, and a person (we were classmates at Yale Law School). But it really irritates me that he continues to write of "activist conservatives, who yearn for the resurrection of what they call the Constitution in Exile," even though Randy Barnett, Orin Kerr, I, and others have pointed out that one cannot find any indvidual "activist conservatives" who actually use, or have used, that phrase, beyond one use in a related [and, ironically, critical] context by Judge Douglas Ginsburg in 1995. Randy summed it up quite well:

There is no "Constitution in Exile" movement, either literally or figuratively. As for literally, I and others had not even heard the expression, plucked from an obscure book review by Judge Douglas Ginsburg, until well after folks like you [Cass Sunstein] and Jeff Rosen had started using it to describe their intellectual opponents. And as author of the 2004 book, Restoring the Lost Constitution: The Presumption of Liberty, I would seem to be at the heart of whatever movement supposedly exists.

For obscure reasons .. the phrase "Constitution in Exile" viscerally appeals to critics of scholars and judges who, like me, favor interpreting the Constitution as amended according to its original meaning. Maybe it makes these "originalists" sound kooky or marginal or radical—like Russian nobility with their shadow governments futilely planning their return to power from the irrelevant comfort of London tea rooms. Maybe this rhetorical move has something to do with undermining future nominees to the Supreme Court who may be originalists.

Similarly, I wrote:

"Constitution in Exile" is a phrase used by Judge Douglas Ginsburg in an obscure article in Regulation magazine in 1995. From then until 2001, I, as someone who knows probably just about every libertarian and most Federalist Society law professors in the United States (there aren't that many of us), and who teaches on the most libertarian law faculty in the nation, never heard the phrase. Instead, the phrase was pretty much ignored until 2001, when it was picked up and publicized by liberals. In October 2001, the Duke Law Journal, at the behest of some liberal law professors assumedly worried about what would happen to constitutional law under Bush appointees, published a symposium on the Constitution in Exile. Thereafter, other left-wingers, such as Doug Kendall of the Community Rights Council and Professor Cass Sunstein, began to write about some dark conspiracy among right-wingers to restore something called "the Constitution in Exile."

Yet, outside of Ginsburg's article, I still have not seen or heard any conservative or libertarian use the phrase, except to deny that they ever use it. And a quick Westlaw search shows that no conservative or libertarian constitutional scholar has ever used it in a law review article.

The one exception since these writings appeared is that after Rosen, Sunstein, et al. popularized the phrase, Judge Andrew Napolitano capitalized on the publicity by writing a book with that title. I think it's fair to say, however, that even after that book was published, and even after Rosen, Sunstein, and others popularized it, the phrase has received no traction among the elite conservative legal thinkers referenced by Rosen in his latest piece.

So, if Jeff and others want to accuse "activist conservatives" of wishing to revive what they (that is, liberal critics) think of as the "Constitution in Exile," they should feel free. But to claim that "activist conservatives" go around talking and writing about it is just plain false.

Dilan Esper (mail) (www):
I agree with this. It's fine to criticize right-libertarian interpretations of the Constitution, but let's exile the term "Constitution in Exile".
10.24.2008 5:37pm
Hoosier:
There is a tendency among academic historians to seek, where appropriate, to refer to members of an intellectual, political, or religious group, etc., by the name that they used for themselves. Other names for a group may be anachronistic (None of the Rockingham Whigs were "conservatives," since the word wasn't used at that time); or, worse, labels applied by adversaries to denigrate them (Alexander Hamilton and co. were not "Monarchists.") No historian would, for example, use the word "Uniate" when discussing Eastern Christianity.

Cass should know better. But what do you want from members of the well-known "Constitution My Ass!" movement?
10.24.2008 5:37pm
the gipper:
If we're going to talk about the Constitution in Exile and Mr. Rosen, perhaps it's worth a look at another one of his articles on that subject -- this one from his 2005 New York Times story. Here is it.
10.24.2008 5:46pm
MarkField (mail):
Given the obscurity of Ginsburg's article, how did liberals come across the phrase? And why the apparent 6 year delay?

I agree, btw, that in general it's best to use the name people choose to describe themselves. I make exceptions to this when someone chooses a name dishonestly.
10.24.2008 5:48pm
the gipper:
It's funny -- CATO has pulled the "constitution in exile" article off of its server. But all-seeing Google still has it. For entertainment value, here's the notorious Powell memo as well.
10.24.2008 5:52pm
wm13:
Mark Field's comment reminds me of a story that the LA Times had determined, in keeping with the principles of journalistic objectivity, that proponents of alternate views on abortion law would be referred to as "pro-life" and "pro-choice," the terms the two groups prefer for themselves. At one point, however, an editor had to admonish reporters that it was not in keeping with the aforesaid principles of objectivity to prefix the words "so-called" to uses of the term "pro-life."
10.24.2008 5:54pm
BT:
Question regarding logic: is the type of argument made by Rosen, etc., known as a straw-man argument?
10.24.2008 6:02pm
Jon Roland (mail) (www):
This post is somewhat out of date, since Napolitano has now adopted the phrase, and more and more people are using it. We have a "Constitution in Exile" page on our site.

But those who use the term self-identify more as "libertarian constitutionalist" than "conservative".

In any case, it is somewhat out of date in that it is now more fashionable to self-identify as "originalist" than it was a decade or two ago, when one was regarded as a kook if one insisted on strict constitutional compliance. No longer. Now it is everyone claiming to be "originalist" -- without meaning it -- and a sad dismissal of us and the entire notion of a written constitution as anachronisms, to be ignored not because we are wrong but because constitutions have been displaced by post-modern notions of "consensus" and "convention" that can and do shift from day to day. A kind of incoherent legal realism that fails to see its own internal contradictions. It is the embracing of an Orwellian regime that only power makes truth.
10.24.2008 6:04pm
Jon Roland (mail) (www):
the gipper:

It's funny -- CATO has pulled the "constitution in exile" article off of its server. But all-seeing Google still has it.

So do we here.
10.24.2008 6:08pm
Duffy Pratt (mail):
I agree. I prefer to think of myself as a Constitutional Pretender.
10.24.2008 6:09pm
Obvious (mail):
DB,

The problem is exactly what? That Rosen is misunderstanding you? That he's misanalyzing you? Or merely that he's misnaming you? Belonging as you do to a group that 100 years ago was known as "liberal", I assume you're used to being misnamed. I'm not suggesting this is completely unimportant, but it DOES seem less important than being misunderstood.

If Rosen in all his future writings substituted "Randy Barnett's theory of Constitutional Interpretation" for "Constitution in Exile", would that satisfy?
10.24.2008 6:09pm
CJColucci:
One of your own uses a catchy phrase, and people you don't like pick it up. Now you'd like them to stop. And they won't. Life is unfair. Suck it up.
10.24.2008 6:15pm
DavidBernstein (mail):
If Rosen referred to Barnett's "Lost Constitution" instead of the alleged "Constitution in Exile," everyone would laugh at him, because as much as many of us admire Randy's work, the idea that the movers and shakers in the conservative legal movement are inclined to adopt his constitutional theories is ludicrous--they are much too radical, and libertarian, for the kind of people who have any serious chance of being appointed to the Supreme Court. Maybe Randy's work will have that kind of influence in the future, but Rosen certainly isn't going to argue it has that kind of influence now. Indeed, the advantage of referencing a concept that doesn't actually exist is that Rosen can project whatever he wants to on to it, without fear of contradiction.

Colucci, I said I don't mind if Rosen wants to use the catch phrase "The Constitution in Exile." My complaint is about the false claim that CONSERVATIVES use it.
10.24.2008 6:16pm
Bandon:
"If Rosen in all his future writings substituted "Randy Barnett's theory of Constitutional Interpretation" for "Constitution in Exile", would that satisfy?"

Or for an even simpler description, what about using a phrase from the title of Barnett's book: "The Lost Constitution"?
10.24.2008 6:19pm
Eric Muller (www):
Admit it, David. The "Constitution in Exile" movement exists, but if you got caught saying "Constitution in Exile" to someone not in the movement, they'd have to shoot you.
10.24.2008 6:20pm
Smokey:
Thanx, gipper, for that fascinating Powell memo link. The chickens have come home to roost.

One thing that I would disagree with Powell about is his belief that the rampant socialism of the campus, of Hollywood, etc., had no driving force. In fact, it did.

As the Venona files show, the Soviets realized after the Korean war that they could not conquer the West by military force. So they deliberately instituted a plan to undermine the freedoms enjoyed by Americans. That plan has been spectacularly successful.
10.24.2008 6:20pm
Grover_Cleveland:
"The Constitution in Exile" was used as a section title in a Congressional subcomittee report dating from September 1996. Google link here. Maybe that contributed to the phrase's popularity?
10.24.2008 6:21pm
Charlie (Colorado) (mail):
Guys, go talk to Michelle Obama about being "colored" and maybe you'll get a hint.

The phrase, innocent as it might have been at first, has been constructed into a pejorative which is then used to dismiss any argument by association.
10.24.2008 6:22pm
frankcross (mail):
I buy all that David, but why don't conservatives use it? It seems like a fabulous catchphrase. And while the goals are overly ambitious in the short term, it's not uncommon to set out a long range direction and try to move incrementally.
10.24.2008 6:22pm
OrinKerr:
David B writes:
If Rosen referred to Barnett's "Lost Constitution" instead of the alleged "Constitution in Exile," everyone would laugh at him, because as much as many of us admire Randy's work, the idea that the movers and shakers in the conservative legal movement are inclined to adopt his constitutional theories is ludicrous--they are much too radical, and libertarian, for the kind of people who have any serious chance of being appointed to the Supreme Court. Maybe Randy's work will have that kind of influence in the future, but Rosen certainly isn't going to argue it has that kind of influence now. Indeed, the advantage of referencing a concept that doesn't actually exist is that Rosen can project whatever he wants to on to it, without fear of contradiction.
I think that is correct.
10.24.2008 6:24pm
OrinKerr:
FrankCross,

I think conservatives don't use it because most conservatives aren't interested in it. Ed Whelan's comments in Rosen's piece capture the goal well, I think: The goal for most conservatives is keeping the Supreme Court from doing new liberal stuff than anything else. Major constitutional change is more on the radar screen for progressives: see the "Constitution in 2020" project. Of course, that doesn't fit the narrative people want to hear, but I do think it has the possible benefit of accuracy.
10.24.2008 6:29pm
titus32:
Admit it, David. The "Constitution in Exile" movement exists, but if you got caught saying "Constitution in Exile" to someone not in the movement, they'd have to shoot you.

Is there a secret handshake?
10.24.2008 6:33pm
ARCraig (mail):
I think the concept (setting aside the phrasing) probably has a lot more currency among the Constitutionalist sub-set of radical libertarians, people like Ron Paul and Andrew Napolitano, than among the more moderate/pragmatic libertarians one tends to find among academia. I have a hard time seeing any mainstream conservatives posing as champions of the poor, abused constitution after generally being on the opposite side of that rhetorical duality under Bush. Though it's also been my impression from afar that "libertarian" and "conservative" have much more overlap in the world of academia than in mainstream politics, or even on the courts. Though to be fair my perception may be somewhat confused from regularly reading an explicitly conservative-libertarian legal blog (or at least, used to be a legal blog before we were overrun with all the amateur punditry)
10.24.2008 6:33pm
Obvious (mail):
David B, your 5:16 pm post, which I think was in part a response to my post of 5:09, gently avoids my thrust. Granted, a reference to Prof. Barnett would be laughed at. So choose a phrase of your own: The Lost Constitution, whatever satisfies. Surely there is SOME phrase that satisfies. There IS some movement, is there not, based on Barnett, Epstein, originalist-in-public-meaning viewpoints. Right?

Now, assume there is such a movement and that in future Rosen properly refers to it, replacing "The Constitution in Exile" with a name that you find more appropriate. Has Rosen misrepresented that movement?

I personally think The Constitution in Exile is a catchy phrase, but ignoring that, there are only 3 possibilities:

1. There is no movement at all. Rosen is ranting about a movement that does not exist. Everyone is quite happy with how the Constitution is interpreted.

2. There is a movement. Rosen has mislabeled it, but described it correctly.

3. There is a movement. Rosen has both mislabeled it and described it incorrectly.

I'm having trouble understanding whether your complaint is 2 or 3. Could you clarify? And if it IS #3, isn't the misrepresentation a more important issue than the mislabeling?
10.24.2008 6:42pm
Jon Roland (mail) (www):
Rosen and I had an exchange on this at the 2005 National Convention of the Federalist Society. After I convincingly argued that only an originalist construction had intellectual integrity, his plaintive rejoinder was, "But what about the reliance interests?" That shows the crux of the matter.

My reply is that we are not talking about standing the "reliance interests" up against the wall. They'll get over it.
10.24.2008 6:52pm
Railroad Gin:
What is so wrong with "Constitution In Exile?" Its a pithy phrase that succinctly sums up what many people believe has been the state of Con Law since the 30s or at least the 60s. I don't have a problem with the term, although I don't use it either.
10.24.2008 6:53pm
DavidBernstein (mail):
None of 1-3 is correct. There are some libertarian-oriented legal scholars who have some influence in conservative legal circles who think that some of the constitutional doctrines that existed before the New Deal should be revived, though this is almost a result of a broader theory of constitutional interpretation, generally a version of originalism, rather than a backwards looking pining for the Old Order. Even Barnett's "lost constitution" is not the pre-New Deal Constitution, but lost in the sense that it is not being properly interpreted.

This group of scholars is relatively influential among conservatives in academic circles, less influential in the Federalist Society as a whole, less influential in conservative legal thought as a whole, has even less influence at the political level, and have no clear influence on anyone on the current Supreme Court beyond occasionally Justice Thomas. They are not sufficiently well-organized or like-minded to be called a movement, and there are serious disagreements within the small subset of constitutional theory about, a whole variety of matters, e.g., whether the Lochner line of cases was great, evil, or somewhere in between. A thoughtful article discussing all this would be welcome, rather than a tendentious piece warning that the mythical Constitution in Exile movement is poised to take control of the Supreme Court if McCain wins (Rosen's piece).

BTW, the one doctrine that may actually see a revival in the future, that I think Rosen fails to mention, is the Contracts Clause, which Scalia, for one, has stated is unjustly ignored. But that's just a matter of textualism and originalism, not a "Constitution in Exile" movement.
10.24.2008 6:56pm
DavidBernstein (mail):
What is so wrong with "Constitution In Exile?"
Again, nothing inherently wrong with using it as a shorthand for those who want to revive certain doctrine, the problem is the FALSE claim that "activist conservatives ... yearn for the resurrection of what they call the Constitution in Exile"
10.24.2008 6:59pm
fear me:
The problem is that it is just fear-mongering masquerading as political analysis. Sunstein, Rosen and Dionne like to act like Richard Epstein is about to take over the federal judiciary and impose extreme results with little political support. That's just laughable.
10.24.2008 7:00pm
Obvious (mail):
DB: Thanks for an edifying response. Certainly "Even Barnett's "lost constitution" is not the pre-New Deal Constitution, but lost in the sense that it is not being properly interpreted." is clearly true. I never thought otherwise, but appreciate now that "lost" might be ambiguous in that regard.

So, in summary, Rosen's real crime is making the thoughts of a small number of libertarian-oriented legal academics seem like a much larger movement. Sad, but untrue, so to speak...
10.24.2008 7:03pm
Christopher Cooke (mail):
You see David, no one believes you when you say the movement doesn't exist. After all, no one in Skull &Bones is supposed to admit it exists, either.

I do think that your perception of differences among Federalist society/conservative legal scholars reminds me of the scene in Life of Brian, where the People's Front of Judea and the Judean People's Front quarrel with one another. See this link
10.24.2008 7:45pm
smitty1e:
Exile? Every time I here a Congresscritter speak as though only the Almighty Fed can address problems, States be damned, I figure the three level/three branch model is completely Tango Uniform.
10.24.2008 7:56pm
DavidBernstein (mail):
Well, Christopher Cooke, if you can't tell the difference between the constitutional views of a Lino Graglia and the constitutional views of a Richard Epstein, both Federalists in good standing, I'm afraid I can't help. If you are ignorant of the views of these men, then you shouldn't be commenting about the Federalist Society.
10.24.2008 9:13pm
frankcross (mail):
Nothing about the phrase "constitution in exile" sounds kooky. I just think it's a catchy phrase for those devoted to originalism and textualism. Or expanded use of the contracts clause. If it's been "unjustly ignored" it's been exiled.
10.24.2008 9:42pm
Bill Dyer (mail) (www):
Rosen is the single most dishonest writer on legal topics of whom I know.
10.24.2008 9:46pm
Hauk (mail):
There's a fourth possibility: Rosen knows that there's not a "Constitution in Exile" movement but loves to annoy the hell out of David Bernstein. And you can't blame him for that.
10.24.2008 9:54pm
PDXLawyer (mail):
Maybe your best course is to rhetorical fight fire with fire. If your side is for the "Constitution in Exile" perhaps Sunstein et al are for the "Undiscovered Constitution."
10.24.2008 10:54pm
MarkField (mail):
All these accusations and denials, yet nobody has answered my question. If there was no such movement, and if the phrase only occurred in an obscure journal, then how did it happen that it suddenly became well-known in about 2001? Somebody must have been using the phrase.
10.24.2008 11:11pm
DavidBernstein (mail):
According to Prof. Van Alstyne, writing in the Duke Law Journal's 2001 symposium on the "Constitution in Exile," the idea for the symposium was hatched by Prof. Christopher Schroeder, and was in fact inspired by Judge Ginsburg's use of the term in his obscure book review. See 51 Duke L.J. 1 (2001).
10.24.2008 11:22pm
DavidBernstein (mail):
"For soon following our initial e-mail correspondence, Professor Schroeder responded to my inquiry about the inspiration for the conference title, by referring to a recent book review by Judge Douglas Ginsburg"
10.24.2008 11:23pm
Cornellian (mail):
I prefer to think of it as more like a Constitution on vacation.
10.24.2008 11:29pm
MarkField (mail):

According to Prof. Van Alstyne, writing in the Duke Law Journal's 2001 symposium on the "Constitution in Exile," the idea for the symposium was hatched by Prof. Christopher Schroeder, and was in fact inspired by Judge Ginsburg's use of the term in his obscure book review. See 51 Duke L.J. 1 (2001).


Thanks.
10.24.2008 11:36pm
Al Maviva:
If there is such a thing as The Constitution in Exile, I hope it comes back and kicks some serious ass, Return of the King style, starting with Jeffrey Rosen's.
10.25.2008 12:06am
David Warner:
frankcross,

"Nothing about the phrase "constitution in exile" sounds kooky."

Reactionary is sufficient.
10.25.2008 12:37am
glangston (mail):
The ACLU has their own.spin on this.
10.25.2008 12:57am
LM (mail):
The socialists in the Democrat Party should have more respect for the titles and terminology their opponents use to identify themselves and their ideas.

[I do believe that. I just also believe the reciprocal.]
10.25.2008 1:14am
LM (mail):
Jon Roland,

Describing one's own argument as convincing isn't.
10.25.2008 1:18am
MS (mail):
Orin,

The goal for most conservatives is keeping the Supreme Court from doing new liberal stuff than anything else.

- Orin Kerr

It is not often in law that so few have so quickly changed so much.

- Justice Breyer, reading from the bench, June 28, 2007

We lawyers need to get some beer and find some common ground because we're really far apart on this.
10.25.2008 1:34am
Obvious (mail):
Cornellian: "I prefer to think of it as more like a Constitution on vacation."

No one gets that much vacation. Better to think of it as the Constitution unemployed.
10.25.2008 1:58am
Asher (mail):
They are not sufficiently well-organized or like-minded to be called a movement, and there are serious disagreements within the small subset of constitutional theory about, a whole variety of matters, e.g., whether the Lochner line of cases was great, evil, or somewhere in between. A thoughtful article discussing all this would be welcome, rather than a tendentious piece warning that the mythical Constitution in Exile movement is poised to take control of the Supreme Court if McCain wins (Rosen's piece).

Maybe you could write one. I'd read it.
10.25.2008 3:57am
Stuart Buck (mail):
Another troublesome bit from the Rosen article:

Continuing the pattern established in the Exxon Valdez decision last year, a property-rights-minded McCain court might also take it on itself to impose, by judicial fiat, a laissez-faire agenda that has no national constituency--including measures such as tort reform or limitations on punitive damages.

Rosen is smart enough to know that 1) the Court already has limited punitive damages in several cases, and more importantly, 2) it has done so with the support of Breyer and Stevens (who wrote BMW v. Gore) and over the dissents of Scalia and Thomas.
10.25.2008 10:44am
Cornellian (mail):
They are not sufficiently well-organized or like-minded to be called a movement

Alas, the perennial Achilles heel of libertarians everywhere.
10.25.2008 12:25pm
Observer:
To say that Justices like Bork, Scalia and Thomas (yes I said Justice Bork) are "activist" because of their desire to enforce the Constitution (as opposed to enforcing their own policy preferences) is the kind of talk that would make Orwell proud. This is just as good as calling welfare payments a "tax cut." And you thought 1984 was 24 years ago.
10.25.2008 3:08pm
David Warner:
"Some men are more beholden to their bitterest enemies than to friends who appear to be sweetness itself. The former frequently tell the truth, but the latter never."

- Cato

Instead of quibbling over whether "in exile" = "lost", perhaps we should take the hint that looking backward is not the most appealing stance for any philosophy that hopes to make new converts going forward.

Might it not be better to identify what exactly it is about that lost constitution that appeals to us, then to seek allies who might be receptive to that appeal?
10.25.2008 3:27pm
Mike G in Corvallis (mail):
"... activist conservatives ... yearn for the resurrection of what they call the Constitution in Exile ..."

And the people who do this call themselves mensheviki, don't they?
10.25.2008 5:18pm
Mike G in Corvallis (mail):
So, if Jeff and others want to accuse "activist conservatives" of wishing to revive what they (that is, liberal critics) think of as the "Constitution in Exile," they should feel free. But to claim that "activist conservatives" go around talking and writing about it is just plain false.

On reconsideration, I think it would be fair to say that most of the people who use this phrase are members of the Democrat party.
10.25.2008 5:24pm
Jon Roland (mail) (www):
LM:

Jon Roland,
Describing one's own argument as convincing isn't.

It seemed convincing to Rosen, after which he reverted to the reliance interests defense. The point is that is the real basis for the opposition, not argument from principle.
10.25.2008 7:04pm
LM (mail):
Jon Roland,

It was advice, not commentary. But since it violates my own conviction that unsolicited advice is rarely welcome and virtually never taken, I'm in no position to defend it.

Ahh, position, smosition. The advice stands.
10.25.2008 9:22pm
David Warner:
LM,

Consider your advice solicited. At least from this corner.
10.25.2008 11:32pm
Jon Roland (mail) (www):
LM:

Jon Roland,
It was advice, not commentary. But since it violates my own conviction that unsolicited advice is rarely welcome and virtually never taken, I'm in no position to defend it.

I underestand, and accept it in that spirit. I should have said "apparently convincing to Rosen".

But my point is still being missed. The opposition to originalist constructions of the Constitution is now more and more often abandoning the pretense that they have a more logical or historical accurate construction, and more willing to acknowledge we are correct as a matter of logic and history. They now more often maintain that logic and history don't matter, that it is only about what judges and other officials can be expected to do, regardless of any connection to law, logic, or history. Legal realism has morphed into Orwellianism (not Orwell's position, but that of his character O'Brien in 1984).
10.26.2008 1:59am
LM (mail):
Jon Roland:

But my point is still being missed.

I agree that should be the point.
10.27.2008 12:17am
LM (mail):
DW,

Thanks and likewise.

It's primarily on the strength of your testimonials about what you perceive in Sarah Palin (qualities which thus far elude me), that I'm withholding judgment and hoping you're right.
10.27.2008 12:30am
David Warner:
LM,

Hope is underrated.
10.27.2008 3:08am